City of Lubbock v. Land

BRIAN QUINN, Justice,

concurring.

I concur in the majority’s opinion but write separately to highlight that merely illustrating that a work release program is somehow involved in the mix does not per se entitle a defendant to immunity. And, I highlight this because the City of Lubbock so intimated in its plea to the jurisdiction of the trial.

Article 42.20 of the Texas Code of Criminal Procedure states:

(a)An individual listed in Subsection (c) of this article and the governmental entity that the individual serves as an officer or employee are not liable for damages arising from an act or failure to act by the individual or governmental entity in connection with a community service program or work program established under this chapter or in connection with an inmate, offender, or releasee programmatic or nonprogrammatic activity, including work, .educational, and treatment activities, if the act or failure to act:

(1) was performed pursuant to a court order or was otherwise performed in an official capacity; and

(2) was not performed with conscious indifference for the safety of others.

(b) Chapter 101, Civil Practice and Remedies Code, does not apply to a claim based on an act or a failure to act of an individual listed in Subsection (c) of this article or a governmental entity the officer serves as an officer or employee if the act or failure to act is in connection with a program described by Subsection (a) of this article.

(c) This article applies to:

(1) a director or employee of a community supervision and corrections department or a community corrections facility;

(2) a sheriff or employee of a sheriffs department;

(3) a county judge, county commissioner, or county employee;

(4) an officer or employee of a state agency; or

(5) an officer or employee of a political subdivision other than a county.

Tex.Code CRIm.Proc.Ann. art. 42.20 (Vernon’s Supp.2000). As illustrated by its terms, the statute affords immunity to those governmental entities and its employees which satisfy each of its conditions. Furthermore, to extract these conditions one needs only to dissect the statute into its various parts. Upon dissecting it, I find approximately five. First, there must be damage suffered by someone. Id. at art. 42.20(a). Second, the damage must arise “from an act or failure to act” by an individual or entity described in subpara-graph (c) of the statute. Id. Third, the same act or failure to act must also be in connection with a) a community service program or work program established under chapter 42 of the Code of Criminal Procedure or b) an inmate, offender, or releasee programmatic or nonprogrammatic activity, including work, educational, and treatment activities. Id. Fourth, the same act or failure to act by the individual or entity within subparagraph (e) must be performed “pursuant to a court order or ... in an official capacity.” Id. at *361 42.20(a)(1). “[A]nd”, fifth, the same act or failure to act by the individual or entity within subparagraph (c) must “not [be] performed with conscious indifference for the safety of others.” Id. at 42.20(a)(2). There being five conditions, only upon satisfaction of each does the hole created in the general governmental immunity statute (found in chapter 101 of the Texas Civil Practice and Remedies Code) close. Id. at art. 42.20(b).

In other words, one is not entitled to immunity simply by showing that the act or omission was in connection with a community service, work release, or other like program available to those accused and or convicted of criminal activity. And, to the extent that the City founded its argument solely upon that element of art. 42.20 in contending that it was entitled to immunity, it erred. Nonetheless, the issue before us is of jurisdictional aspect, and being so, we have the obligation to sua sponte determine it presence. Thus, while the City failed to address them in either its motion below or its appellate brief at bar, our obligation included the duty to consider whether the other four elements of art. 42.20 appeared of record. And, upon review of the live pleading of Land in a light most favorable to land, I to conclude that they did. See Peek v. Equipment Serv. Co., 779 S.W.2d 802, 804 (Tex.1989) (holding that the plaintiffs petition must be liberally construed in determining the existence of subject matter jurisdiction); Texas Nat. Resource & Conservation Comm. v. White, 13 S.W.3d 819, 822 (Tex.App.—Fort Worth 2000, pet. filed) (stating that we generally look to the allegations contained in the plaintiffs petition in determining the presence of subject matter jurisdiction).